Cases nos 7601/76 and 7806/77
51. A substantial part of the pleadings before the Court was devoted to the question whether Article 11 (art. 11) guarantees not only freedom of association, including the right to form and to join trade unions, in the positive sense, but also, by implication, a "negative right" not to be compelled to join an association or a union.
Whilst the majority of the Commission stated that it was not necessary to determine this issue, the applicants maintained that a "negative right" was clearly implied in the text. The Government, which saw the Commission’s conclusion also as in fact recognising at least a limited negative right, submitted that Article 11 (art. 11) did not confer or guarantee any right not to be compelled to join an association. They contended that this right had been deliberately excluded from the Convention and that this was demonstrated by the following passage in the travaux préparatoires:
"On account of the difficulties raised by the ‘closed-shop system’ in certain countries, the Conference in this connection considered that it was undesirable to introduce into the Convention a rule under which ‘no one may be compelled to belong to an association’ which features in [Article 20 par. 2 of] the United Nations Universal Declaration" (Report of 19 June 1950 of the Conference of Senior Officials, Collected Edition of the "Travaux Préparatoires", vol. IV, p. 262).
52. The Court does not consider it necessary to answer this question on this occasion.
The Court recalls, however, that the right to form and to join trade unions is a special aspect of freedom of association (see the National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 17, par. 38); it adds that the notion of a freedom implies some measure of freedom of choice as to its exercise.
Assuming for the sake of argument that, for the reasons given in the above-cited passage from the travaux préparatoires, a general rule such as that in Article 20 par. 2 of the Universal Declaration of Human Rights was deliberately omitted from, and so cannot be regarded as itself enshrined in, the Convention, it does not follow that the negative aspect of a person’s freedom of association falls completely outside the ambit of Article 11 (art. 11) and that each and every compulsion to join a particular trade union is compatible with the intention of that provision. To construe Article 11 (art. 11) as permitting every kind of compulsion in the field of trade union membership would strike at the very substance of the freedom it is designed to guarantee (see, mutatis mutandis, the judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no. 6, p. 32, par. 5, the Golder judgment of 21 February 1975, Series A no. 18, p. 19, par. 38, and the Winterwerp judgment of 24 October 1979, Series A no. 33, p. 24, par. 60).
53. The Court emphasises once again that, in proceedings originating in an individual application, it has, without losing sight of the general context, to confine its attention as far as possible to the issues raised by the concrete case before it (see, inter alia, the Guzzardi judgment of 6 November 1980, Series A no. 39, pp. 31-32, par. 88). Accordingly, in the present case, it is not called upon to review the closed shop system as such in relation to the Convention or to express an opinion on every consequence or form of compulsion which it may engender; it will limit its examination to the effects of that system on the applicants.
54. As a consequence of the agreement concluded in 1975 (see paragraph 29 above), the applicants were faced with the dilemma either of joining NUR (in the case of Mr. James) or TSSA or NUR (in the cases of Mr. Young and Mr. Webster) or of losing jobs for which union membership had not been a requirement when they were first engaged and which two of them had held for several years. Each applicant regarded the membership condition introduced by that agreement as an interference with the freedom of association to which he considered that he was entitled; in addition, Mr. Young and Mr. Webster had objections to trade union policies and activities coupled, in the case of Mr. Young, with objections to the political affiliations of the specified unions (see paragraphs 34, 37 and 43 above). As a result of their refusal to yield to what they considered to be unjustified pressure, they received notices terminating their employment. Under the legislation in force at the time (see paragraphs 17 and 20-23 above), their dismissal was "fair" and, hence, could not found a claim for compensation, let alone reinstatement or re-engagement.
55. The situation facing the applicants clearly runs counter to the concept of freedom of association in its negative sense.
Assuming that Article 11 (art. 11) does not guarantee the negative aspect of that freedom on the same footing as the positive aspect, compulsion to join a particular trade union may not always be contrary to the Convention.
However, a threat of dismissal involving loss of livelihood is a most serious form of compulsion and, in the present instance, it was directed against persons engaged by British Rail before the introduction of any obligation to join a particular trade union.
In the Court’s opinion, such a form of compulsion, in the circumstances of the case, strikes at the very substance of the freedom guaranteed by Article 11 (art. 11). For this reason alone, there has been an interference with that freedom as regards each of the three applicants.
56. Another facet of this case concerns the restriction of the applicants’ choice as regards the trade unions which they could join of their own volition. An individual does not enjoy the right to freedom of association if in reality the freedom of action or choice which remains available to him is either non-existent or so reduced as to be of no practical value (see, mutatis mutandis, the Airey judgment of 9 October 1979, Series A no. 32, p. 12, par. 24).
The Government submitted that the relevant legislation (see paragraph 26 above) not only did not restrict but also expressly protected freedom of action or choice in this area; in particular, it would have been open to the applicants to form or to join a trade union in addition to one of the specified unions. The applicants, on the other hand, claimed that this was not the case in practice, since such a step would have been precluded by British Rail’s agreement with the railway unions and by the Bridlington Principles (see paragraph 27 above); in their view, joining and taking part in the activities of a competing union would, if attempted, have led to expulsion from one of the specified unions. These submissions were, however, contested by the Government.
Be that as it may, such freedom of action or choice as might have been left to the applicants in this respect would not in any way have altered the compulsion to which they were subjected since they would in any event have been dismissed if they had not become members of one of the specified unions.
57. Moreover, notwithstanding its autonomous role and particular sphere of application, Article 11 (art. 11) must, in the present case, also be considered in the light of Articles 9 and 10 (art. 9, art. 10) (see, mutatis mutandis, the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 26, par. 52).
Mr. Young and Mr. Webster had objections to trade union policies and activities, coupled, in the case of Mr. Young, with objections to the political affiliations of TSSA and NUR (see paragraphs 34 and 43 above). Mr. James’ objections were of a different nature, but he too attached importance to freedom of choice and he had reached the conclusion that membership of NUR would be of no advantage to him (see paragraph 37 above).
The protection of personal opinion afforded by Articles 9 and 10 (art. 9, art. 10) in the shape of freedom of thought, conscience and religion and of freedom of expression is also one of the purposes of freedom of association as guaranteed by Article 11 (art. 11). Accordingly, it strikes at the very substance of this Article (art. 11) to exert pressure, of the kind applied to the applicants, in order to compel someone to join an association contrary to his convictions.
In this further respect, the treatment complained of - in any event as regards Mr. Young and Mr. Webster - constituted an interference with their Article 11 (art. 11) rights.
2. The existence of a justification for the interference found by the Court
58. The Government expressly stated that, should the Court find an interference with a right guaranteed by paragraph 1 of Articles 9, 10 or 11 (art. 9-1, art. 10-1, art. 11-1), they would not seek to argue that such interference was justified under paragraph 2.
The Court has nevertheless decided that it should examine this issue of its own motion, certain considerations of relevance in this area being contained in the documents and information with which it has been furnished.
59. An interference with the exercise of an Article 11 (art. 11) right will not be compatible with paragraph 2 (art. 11-2) unless it was "prescribed by law", had an aim or aims that is or are legitimate under that paragraph and was "necessary in a democratic society" for the aforesaid aim or aims (see, mutatis mutandis, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 29, par. 45).
60. The applicants argued that the restrictions of which they complained met none of these three conditions.
The Court does not find it indispensable to determine whether the first two conditions were satisfied, these being issues which were not fully argued before it. It will assume that the interference was "prescribed by law", within the meaning of the Convention (see the above-mentioned Sunday Times judgment, pp. 30-31, par. 46-49), and had the aim, amongst other things, of protecting the "rights and freedoms of others", this being the only of the aims listed in paragraph 2 that might be relevant.
61. In connection with the last point, the Court’s attention has been drawn to a number of advantages said to flow from the closed shop system in general, such as the fostering of orderly collective bargaining, leading to greater stability in industrial relations; the avoidance of a proliferation of unions and the resultant trade union anarchy; the counteracting of inequality of bargaining power; meeting the need of some employers to negotiate with a body fully representative of the workforce; satisfying the wish of some trade unionists not to work alongside non-union employees; ensuring that trade union activities do not benefit of those who make no financial contribution thereto.
Any comment on these arguments would be out of place in the present case since the closed shop system as such is not under review (see paragraph 53 above).
62. On the other hand, what has to be determined is the "necessity" for the interference complained of: in order to achieve the aims of the unions party to the 1975 agreement with British Rail, was it "necessary in a democratic society" to make lawful the dismissal of the applicants, who were engaged at a time when union membership was not a condition of employment?
63. A number of principles relevant to the assessment of the "necessity" of a given measure have been stated by the Court in its Handyside judgment of 7 December 1976 (Series A no. 24).
Firstly, "necessary" in this context does not have the flexibility of such expressions as "useful" or "desirable" (p. 22, par. 48). The fact that British Rail’s closed shop agreement may in a general way have produced certain advantages is therefore not of itself conclusive as to the necessity of the interference complained of.
Secondly, pluralism, tolerance and broadmindedness are hallmarks of a "democratic society" (p. 23, par. 49). Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. Accordingly, the mere fact that the applicants’ standpoint was adopted by very few of their colleagues is again not conclusive of the issue now before the Court.
Thirdly, any restriction imposed on a Convention right must be proportionate to the legitimate aim pursued (p. 23, par. 49).
64. The Court has noted in this connection that a majority of the Royal Commission on Trade Unions and Employers’ Associations, which reported in 1968, considered that the position of existing employees in a newly-introduced closed shop was one area in which special safeguards were desirable (see paragraph 14 above). Again, recent surveys suggest that, even prior to the entry into force of the Employment Act 1980 (see paragraph 24 above), many closed shop arrangements did not require existing non-union employees to join a specified union (see paragraph 13 above); the Court has not been informed of any special reasons justifying the imposition of such a requirement in the case of British Rail. Besides, according to statistics furnished by the applicants, which were not contested, a substantial majority even of union members themselves disagreed with the proposition that persons refusing to join a union for strong reasons should be dismissed from employment. Finally, in 1975 more than 95 per cent of British Rail employees were already members of NUR, TSSA or ASLEF (see paragraph 31 above).
All these factors suggest that the railway unions would in no way have been prevented from striving for the protection of their members’ interests (see the above-mentioned National Union of Belgian Police judgment, p. 18, par. 39) through the operation of the agreement with British Rail even if the legislation in force had not made it permissible to compel non-union employees having objections like the applicants to join a specified union.
65. Having regard to all the circumstances of the case, the detriment suffered by Mr. Young, Mr. James and Mr. Webster went further than was required to achieve a proper balance between the conflicting interests of those involved and cannot be regarded as proportionate to the aims being pursued. Even making due allowance for a State’s "margin of appreciation" (see, inter alia, the above-mentioned Sunday Times judgment, p. 36, par. 59), the Court thus finds that the restrictions complained of were not "necessary in a democratic society", as required by paragraph 2 of Article 11 (art. 11-2).
There has accordingly been a violation of Article 11 (art. 11).